Wednesday, September 5, 2018

September 4 City Council Meeting - Parolee Housing Round 3

Last night was the third City Council meeting that dealt with Parolee Housing.  Attendance was lighter than the last meeting, but there were still about 50 people who were present.  It was clear from the outset that the Council had their minds made up and the vote on the amended ordinance introduced last meeting was a formality.  I spoke during the public comment period, highlighting the poor actions of the Council actually increasing the risk of litigation and regarding their lack of due diligence.

There was a representative from the County talking about re-entry of parolees as well.  He attempted to downplay the risk presented, focusing on low level non violent property crimes as the focus of re-entry.  However, it's important to realize the types of crimes that were targeted in the AB109 realignment that are pushing more parolees out of incarceration back into neighborhoods.  Those include:
  • Meth/PCP/other drug related manufacturing and possession
  • Child stealing by person without custody
  • Brandishing firearm at person in vehicle
  • Second degree burglary
  • Looting
  • Grand theft of various kinds
  • Bring/possess weapon on grade school grounds
  • Threatening to injure a public or school employee
  • Removal of officer's firearm while resisting arrest
  • Bringing loaded firearm on state grounds
  • Involuntary manslaughter
  • Taking of hostage
  • Unlawful transfer of firearm to minor
  • Possession of assault weapon or machine gun
I detail more at the bottom of a previous post, here.

The Council then voted 4-0 to approve the ordinance, with a 1000 ft buffer around sensitive use items, ignoring private parks, and targeting two areas in the city.

Below is the transcript of my statement:


The Council has mishandled the issue of parolee housing in at least two significant ways. The first is in its effort to avoid litigation, you have taken actions that weakens your position if there ever were litigation. The second way parolee housing has been mishandled by the Council is your failure to perform sufficient due diligence. I’ll comment on each of these areas.

Regarding litigation – it seems like the Council’s primary objective is to avoid litigation. But if you are concerned about litigation, the comments regarding your motivation provided at the last meeting were extremely unwise. The Supreme Court has repeatedly held that animus towards certain groups is an unconstitutional basis for making law.

So while promoting the safety of the city actually would be a legitimate basis for lawmaking, comments including those from Councilmember Pierce as quoted in an Aug 25 article at the East Bay Times where she said she wants to “make it as ugly a process as it can possibly be” and that she is “going to count on everyone to …raise holy hell to drive them out” are not.

It makes me wonder if Councilmember Pierce was provided guidance on how to properly craft a law that avoids unconstitutional animus. Because her comments here don’t reflect that. As the Supreme Court stated in USDA v. Moreno:
“If the constitutional conception of "equal protection of the laws" means anything, it must, at the very least, mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
It would be wise for Councilmember Pierce to avoid the appearance of unconstitutional animus and focus on the legitimate interests of the City of Clayton in regulating Parolee housing. Just saying.

Regarding lack of due diligence - This ordinance appears to have put the Council in a conundrum. You have placed a de facto ban off the table, while at the same time narrowing the available parts of the city to 2 areas. But if there were a park or day care or other sensitive use in those two areas, which the Council is apparently ignorant of whether or not one exists, then those areas would be ruled out as well and you would be faced with the ban you are trying to avoid, all on the backs of those that live in the lower cost targeted areas filled with young families and retirees. It would behoove you to determine whether any of those sensitive use items actually exists so you can make more informed decisions.

Specifically related to the level of diligence, I have a few questions that I’ll just go through and you can address in your comments later:
  • Can the Council clarify why they did not address the matter of parolee housing in the two years before the moratorium was set to expire? 
  • Was external counsel engaged to consult in any capacity at any time? 
  • Given the City Attorney considered any potential litigation a matter of first impression, on what basis did the City Attorney conclude first at the July 17 meeting that 500 ft was the most restrictive buffer defensible, and then at the Aug 21 meeting conclude that 1000 ft was the most restrictive buffer defensible? 
  • What is the rationale for excluding private parks from the types of sensitive uses, while simultaneously including private schools? 
  • I didn’t notice the Hesperia matter that Councilwoman Catalano raised at the Aug 21 meeting included in the original staff report - was the City Attorney aware of the Hesperia matter prior to Councilwoman Catalano bringing it up? 
  • Does the staff or Council believe that Oakhurst golf course is considered a business licensed for on or off sale of alcoholic beverages? 
Here is the real conundrum - If you become aware of a sensitive use item existing in one or both of the targeted areas for parolee housing, would you then take steps to relax the restrictions on parolee housing making it easier to come to Clayton, or expand the areas targeted? Or maybe then would you be comfortable with a ban?

The scrambling around this issue at the last minute could have been avoided had the Council deigned to take on regulation at an earlier date. After passing the original moratorium years ago, the Council shelved this issue until the last possible window to address it. If instead it was addressed at the outset, there would have been sufficient time to seek input from residents, and engage in proper diligence about buffer zones, zoning, locations of sensitive use items, and crafting law that would survive legal challenge. Instead the Council dropped the ball on this issue and here we are.

That is why I am a candidate for City Council.


I did provide my questions to the Council in written form after my comments so they could address them. I passed them directly to Councilmember Shuey. He and the rest of the Council declined to respond or acknowledge my questions which is their right - the Council is free to ignore any questions presented to them during public comments. If elected however, the rest of the Council would not be able to do so.